IN THE HIGH COURT OF JUDICATURE AT MADRAS
INDIRA BANERJEE, M. SUNDAR, JJ.
M/s. Archer Power Systems Private Limited, Represented by its Director Rohit Rabindernath – Appellant
Versus
Kohli Ventures Limited, United Kingdom & Others – Respondent
Original Side Appeal No. 144 of 2017 & C.M.P. No. 10504 of 2017
Decided On : 16-11-2017
Arbitration and Conciliation Act, 1996 - Section 9 - Applications for vacating the interim order and for suspending the interim order - This intra-court appeal is directed against an order made by a learned Single Judge on the Original Side of this Court - To be noted, this order has been passed in three applications - Held, Though this has not been put in issue in this appeal, we notice that a very interesting proposition props up - If a section 9 application is filed in the instant case, post award, the dynamics and dimensions of applicable law may change - However, as it has not been put in issue before us, rightly so, this being the pre award stage, Court refrain from expressing any opinion on the same and make it clear that this question is left open to be canvassed by the parties at the appropriate time if the need arises - At the risk of repetition, Court reiterate that arbitration being a creature of contract, intention of the parties is extremely Sanctus - This is reinforced and reflected in Parliamentary wisdom in introduction of proviso to Section 2(2) of A and C Act which has been referred to supra - To give clarity to the elaborate narrative and discussion, we attempt to simplify, encapsulate the discussion and say that clause 91 of SHA is the clincher in this litigation - In other words, in the absence of clause 91 in the SHA, the dynamics and complexion of this litigation would have been very different - Court have set out this only in an attempt to achieve a good blend of enhancement of clarity and brevity - Therefore, this shall not be construed as the sole finding in this judgment - Petition dismissed.
M. SUNDAR, J.
1. This intra-court appeal is directed against an order dated 01.06.2017 made by a learned Single Judge on the Original Side of this Court in O.A.No.347 of 2017. To be noted, this order dated 01.06.2017 has been passed in three applications, i.e., O.A.No.347 of 2017, A.Nos.2270 of 2017 and 2271 of 2017. Further to be noted, Application Nos.2270 and 2271 of 2017 are applications in O.A.No.347 of 2017 being applications for vacating the interim order and for suspending the interim order.
2. O.A.No.347 of 2017 is an application under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'A and C Act' in this order for the sake of brevity). When O.A.No.347 of 2017 was moved under Section 9 of the A and C Act, an interim order was granted on 07.04.2017. Subsequently, the second respondent in O.A.No.347 of 2017 entered appearance and took out applications in A.Nos.2270 and 2271 of 2017 with prayers for vacating and suspending the interim order dated 07.04.2017 respectively.
3. Learned single Judge vide the above said common order dated 01.06.2017 dismissed O.A.No.347 of 2017. Inferentially, A.Nos.2270 and 2271 of 2017 stood allowed.
4. Aggrieved, the applicant before the learned single Judge is before us in this intra-Court appeal.
5. It may be necessary to set out a thumbnail sketch of the facts under the caption 'Factual Matrix' for the purpose of appreciating our judgment and we do so infra.
6. FACTUAL MATRIX:
6(a) Before setting out the factual matrix we make it clear that this is only a thumbnail sketch of facts as stated supra. This is so as the entire matter pertains to an issue of jurisdiction.
6(b) In terms of individuals, there are two individuals who are the main players in this entire commercial venture. One is Rohit Rabindranath, who is said to be a promoter of some entities/companies which have been collectively described as 'Zynergy Group of Companies'. The other is Tej Kohli, a Costa Rican national of Indian origin, who is believed to have residential and corporate track records in U.S.A, U.K, Costa Rica and several other countries.
6(c) To be noted, according to the appellant before us, it subsequently came to light that Tej Kohli was also known as Navtej Kohli.
6(d) Besides the two individuals referred to supra, there are 7 entities which are players in a commercial venture which is the subject matter of this appeal before us. For the purpose of brevity, convenience and clarity, we refer to the seven entities in the following manner:
i. Archer Power Systems Private Limited, which is the appellant before us, is an Indian Company and is hereinafter referred to as 'Archer India';
ii. Kohli Venture Limited, which is the first respondent before us is a company registered in British Virgin Islands and is hereinafter referred to as 'Kohli Ventures, BVI';
iii. Cascade Energy Pvt. Ltd.,, which is the second respondent before us is an entity registered under the Laws of Singapore and is hereinafter referred to as 'Cascade Singapore';
iv. Zynergy Solar Projects and Services Private Limited, which is the third respondent before us is an Indian company and is hereinafter referred to as 'Zynergy Solar, India';
v. Greatshine Holdings Private Limited, which is the 5th respondent before us is an Indian company and is hereinafter referred to as 'Greatshine Holdings, India';
vi. Alectrona Energy Private Limited, which is the 6th respondent before us is an Indian company and is hereinafter referred to as 'Alectrona India; and
vii. Zynergy Capital Pte. Ltd., which is the 7th respondent before us is the company registered under the Laws of Singapore and is hereinafter referred to as 'Zynergy Capital, Singapore'.
6(e) To be noted, one of the above said two individuals, Rohit Rabindranath, the Indian National is Respondent No.4 before us. The other individual referred to supra i.e., Tej Kohli, a Costa Rican national of Indian origin is not a party before us.
6(f) Particularly speaking, Kohli Ventures, BV
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